Are No-Bullying Zones Constitutional?

By Wendy Kaminer

The D.C. Council seeks to ban harassment and intimidation in public places, but its proposal goes too far, restricting free speech

Mikael Damkier/Shutterstock

It started on college and university campuses, where repressive speech codes have been teaching generations of students that they have no right to offend anyone who can claim membership in a growing list of presumptively disadvantaged groups. Now, this mindlessly censorious movement to force people to be nice to each other is encroaching on off-campus life: The Council of the District of Columbia is considering banning the "harassment, intimidation, or bullying" of students in public libraries and parks, as well as schools (including the District's public university). Bureaucrats in charge of all relevant supervisory agencies are required to promulgate detailed policies that define bullying and harassment "no less inclusively" than the Council's bill.

It would be difficult to define bullying more inclusively: According to the Council, "harassment, intimidation ,or bullying" is "any gesture or written, verbal, or physical act, including electronic communication, that is reasonably perceived as being motivated either by any actual or perceived characteristic, such as race, color, religion, ancestry, national origin, gender, sexual orientation, gender identity, and expression, or a mental, physical, or sensory handicap, or by any other distinguishing characteristic" that a "reasonable person" would foresee as effectively intimidating or harmful to students or their property, or as effectively "insulting or demeaning" so as to disrupt or interfere substantially with "the orderly operation of a school, university, recreational facility, or library."

Don't
"Why not simply promulgate and enforce rules against harassment? Why devise new legal concepts and definitions of bullying?"
bother trying to figure out what this vague and verbose definition of bullying includes. Focus instead what it might exclude -- not much. Virtually no speech or behavior that a student might consider insulting and that a petty bureaucrat might find offensive and disruptive is beyond the reach of this ban. Its scope is simply breathtaking -- although, sad to say, the "inclusiveness" of this bill doesn't distinguish it from other state and local bullying laws or campus speech codes. It is, however, shamefully distinguished by its application outside of school to public libraries and parks. Imposing a subjective sensitivity code on the general public, it displays an astonishing contempt for the most obvious and fundamental freedoms of speech and belief as well as astonishing ignorance of constitutional rights.

The flagrant abuses of this bill threaten civil society much more than the abuse it apparently intends to prevent -- bullying (anti-gay bullying, in particular). In addition to policing the everyday speech of anyone who frequents a public park or library, the bill creates a system of informants within specific agencies. Students, volunteers, or agency employees are required to report alleged bullying incidents to the "appropriate official" named in that agency's mandatory anti-bullying policy. And the policy must allow for anonymous reporting. Forgive me for stating what should be obvious: this is not a prescription for fostering mutual tolerance and trust in an open and free society.

The social effects of expansive laws prohibiting allegedly hurtful speech are still debatable (however weak arguments for their social utility may be). But the unconstitutionality of the D.C. bill is clear. While in K through 12 public schools, administrators enjoy considerable power to restrict "disruptive" student speech, administrators in public colleges and universities are obliged to respect First Amendment rights. So are elected officials, who have no power to prohibit citizens from allegedly demeaning, insulting, or otherwise offending each other. At the very least, the D.C. bill fails because it subjects adults (who dare to frequent parks and libraries), college students, teenagers and elementary schoolers to the same vague and onerous restrictions on speech (and the same system of informants). Just last term, the Supreme Court confirmed the right of virulently homophobic church members to protest outside military funerals, despite the pain their protests might inflict; there's no question that members of the public (and students at public colleges) have a right to engage in the mundane incivilities covered by the D.C bill.

But courts may eventually be required to vindicate those rights. The D.C. Council expects to vote on this blatantly unconstitutional bill by the end of this year. It reportedly enjoys "overwhelming support" in the Council, which has heard from a parade of witnesses supporting its infantilizing restrictions on speech. (Some have even pressed for more stringent enforcement provisions.)

Critics of the bill, at least on the left, are a bit harder to find, although some civil libertarians persist: Joan Bertin, Executive Director of the National Coalition Against Censorship, observes that this "well-intentioned bill threatens constitutionally protected student speech" and expresses strong concerns about imposing unconstitutional speech restrictions on members of the public outside of school. Last year, Art Spitzer, legal director of the ACLU's D.C. affiliate, voiced concerns about the definition of bullying: "What does it mean by harming a student ... Does that mean hurting a student's feelings? If a student comes in and says I feel very harmed by the fact that so and so said I was a crappy athlete ... that's not bullying." If Spitzer also commented on the application of bullying restrictions to public parks and libraries and to adults as well as children, or on the mandatory informant system, those comments were not reported.

What is the ACLU's position on the current bill? My repeated queries to ACLU affiliate staff in D.C. and to the national media office have gone unanswered. But Spitzer has confirmed in the press that the ACLU supports the concept of anti-bullying laws (although I have yet to see one that doesn't unduly restrict protected speech).* Besides, bullying is a cultural concept, not a legal one -- at least not yet. Harassment, however, is a legal concept, and it has been clearly defined by the Supreme Court. In a 1999 case, the Court defined student-on-student harassment as "severe, pervasive, and objectively offensive" conduct that deprives students of access to educational opportunities or benefits.

Why not simply promulgate and enforce rules against harassment? Why devise new legal concepts and definitions of bullying? Because the Court's definition of harassment was reasonably narrow and does not allow for expansive speech policing, which is a goal of anti-bullying advocates. The D.C. bill, the plethora of campus speech codes (available at thefire.org) proposed federal anti-bullying legislation, and new state anti-bullying laws make clear that the war on bullying is a war on speech, conducted most perversely in the supposed interests of civil rights.

The new civil rights/anti-bullying advocates have apparently forgotten, if ever they remembered, that freedom of speech, including the freedom to offend, has been essential to their own liberation movements. Women once deeply offended social mores merely by speaking in public. African-Americans surely offended segregationists by demanding equality. And if gay rights activists lacked the right to offend the "family values" crowd, gay pride parades would have been enjoined long ago.

Of course, anti-bullying crusaders will object to this apparent comparison of their "offensive" just and righteous demands for equality with racist, homophobic, sexist, or ethnic slurs directed at vulnerable students. Their objections invite at least three responses: 1) Anti-bullying restrictions reach far beyond such slurs, which may well constitute harassment, when they pose cognizable harms; 2) whatever constitutes offensive or demeaning speech is in the ear of the beholder; and 3) the effort to forge consensus on what constitutes a just or righteous cause depends on the rights of passionate opponents to engage in debate and to give and take offense. I trust I've offended advocates of anti-bullying laws, wish them luck offending me in turn, and promise not to sue.

* Nov. 7: Art Spitzer, legal director of the ACLU's office in Washington, D.C, has since been in touch to inform me that he did, in fact, respond to me by email, but a technical problem had prevented the message from being transmitted.